B. Whose records are and are not subject to the Act
The Arizona Public Records Law contains two operative definitions—“officer” and “public body”—for the purpose of subjecting certain documents to disclosure under the law.
“Officer” is defined as “any person elected or appointed to hold any elective or appointive office of any public body and any chief administrative officer, head, director, superintendent or chairman of any public body.” A.R.S. § 39-121.01(A)(1).
“Public body” is defined by statute as “this state, any county, city, town, school district, political subdivision or tax-supported district in this state, any branch, department, board, bureau, commission, council or committee of the foregoing, and any public organization or agency, supported in whole or in part by monies from this state or any political subdivision of this state, or expending monies provided by this state or any political subdivision of this state.” A.R.S. § 39-121.01(A)(2). The operative definition of a “public body” in Arizona is very broad. Indeed, any “public organization or agency” supported by or expending public funds falls within the ambit of the Act.
Exempt Agencies: No Arizona agencies are exempted in their entirety.
Every officer and every public body are obligated to preserve, maintain and care for public records pursuant to Arizona law. A.R.S. § 39-121.01(C).
Records of a “public official or employee” and a “governmental agency” are covered by the FOIA. Ark. Code. Ann. § 25-19-103(5)(A). This definition includes executive branch agencies and officials. E.g., Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987) (state agency); Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975) (state university board of trustees); Ark. Op. Att’y Gen. Nos. 99-407 (advisory council established by statute within Department of Human Services), 99-377 (investment committee created by statute and composed of government officials), 95-023 (state licensing agency). By its terms, the act is not limited to records of elected officials. Ark. Op. Att’y Gen. No. 99-040.
Only those records that “constitute a record of the performance or lack of performance of official functions” are public records. Ark. Code. Ann. § 25-19-103(5)(A). Records “maintained in public offices or by public employees within the scope of their employment” are presumed to be public records. Id. See also Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718, opinion after remand, 371 Ark. 217, 264 S.W.3d 465 (2007) (requiring trial court to conduct an in camera review of all e-mails of a county employee to determine if e-mails were public records under the FOIA).
"State" Records in General. "Public Records" are defined to include records "made, maintained, or kept by the state or any agency, institution, a nonprofit corporation incorporated pursuant to Colo. Rev. Stat. § 23-5-121(2), or political subdivision of the state, or that are described in Colo. Rev. Stat. § 29-1-902, and held by any local government-financed entity." Colo. Rev. Stat. § 24-72-202(6). The broad scope of this definition includes all agencies of the executive branch and legislative bodies.
"Political subdivisions" to which the Open Records Act applies include every county, city, town, school district, special district, public highway authority, rural transportation authority, and housing authority within the State of Colorado. Colo. Rev. Stat. § 24-72-202(5). The definition of "political subdivision" is to be liberally construed, and includes the State Compensation Insurance Authority, the state workers' compensation insurance fund. Dawson v. State Compensation Ins. Auth., 811 P.2d 408 (Colo. App. 1990).
The Act also applies to any "agency or instrumentality" of a political subdivision. Zubeck v. El Paso Cty. Ret. Plan, 961 P.2d 597 (Colo. App. 1998). The Act also applies to a non-profit corporation established by a governmental body to perform governmental functions with public funds and subject to governmental oversight, supervision, or control. Denver Post v. Stapleton Dev. Corp., 19 P.3d 36 (Colo. App. 2000).
The Act applies to every state institution of higher education and the respective governing boards. The University of Colorado and its regents are specifically included as a state "institution" to which the Act applies. Colo. Rev. Stat. § 24-72-202(1.5).
The act also applies to "institutionally related foundations," including health care foundations and real estate foundations. Colo. Rev. Stat. §§ 24-72-202(1.6), (1.8), (1.9). An institutionally related foundation is a nonprofit corporation, institute or similar entity that is organized for the benefit of an institution, and whose principal purpose is receiving private donations to be used for the benefit of that institution. Colo. Rev. Stat. §§ 24-72-202(1.6). "Public records" for such a foundation include all writings relating to the requests for disbursement or expenditure of funds. Colo. Rev. Stat. § 24-72-202(6)(a)(IV).
FOIA applies to all "public agencies" as defined in Conn. Gen. Stat. §1-200(1): "'Public agency' or 'agency' means (A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only with respect to its or their administrative functions; (B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law; or (C) Any "implementing agency", as defined in section 32-222." In Nastro v. FOIC, 2008 Conn. Super. LEXIS (2008), the court held that records possessed by a public agency must be produced even if the same records would be exempt when possessed by a different public agency.
Records of all state and local public agencies—and all private persons or entities operating for or on behalf of such agencies—are subject to the Act.
The act defines agency to include:
- Every state department, agency, board, bureau, office, commission, public corporation, and authority
- Every county, municipal corporation, school district, or other political subdivision of this state
- Every department, agency, board, bureau, office, commission, authority, or similar body of each such county, municipal corporation, or other political subdivision of the state
- Every city, county, regional, or other authority established pursuant to the laws of this state
- Any association, corporation, or other similar organization that has a membership or ownership body composed primarily of counties, municipal corporations, or school districts of this state, their officers, or any combination thereof and derives more than 33 1/3 percent of its general operating budget from payments from such political subdivisions; and
- Certain nonprofit organizations to which there is a direct allocation of tax funds made by the governing body of any agency as defined in this paragraph which constitutes more than 33 1/3 percent of the funds from all sources of such organization.
O.C.G.A. § 50-18-70(b)(1) (incorporating by reference Open Meetings Act definition set forth at § 50-14-1).
Section 92F-11 provides that, except as provided in Section 92F-13 [exceptions to disclosure], "each agency shall upon request . . . make government records available for inspection and copying . . . ." Haw. Rev. Stat. § 92F-11(b). The definition of "agency" in Section 92F-3 is very broad and includes all "units" of government, including the legislative branch and administrative functions of the judicial branch. An agency is specifically defined as
any unit of government in this State, any county, or any combination of counties; department; institution; board; commission; district; council; bureau; office; governing authority; other instrumentality of state or county government; or corporation or other establishment owned, operated, or managed by or on behalf of this State or any county, but does not include the non-administrative functions of the courts of this State.
Haw. Rev. Stat. § 92F-3. There are nearly 7000 such units of government in Hawaii, each qualifying as an "agency" under the UIPA's statutory definition. OIP, Records Report Training Guide 40 (1992) (on file with OIP) (summarizing data).
Records in possession of third persons are "government records" for the purposes of the UIPA if an agency retains administrative control over those records. UIPA Request of Gusalino Brothers Construction Inc., OIP Op. Ltr. No. 95-8 (May 4, 1995). Provided that none of the exceptions in Section 92F-13 apply, an agency must disclose those records upon request. Id.
“Public record” is broadly defined as “any writing containing information relating to the conduct or administration of the public’s business” and includes all such writings “prepared, owned, used or retained by any state agency, independent public body corporate and politic or local agency regardless of physical form or characteristics.” Idaho Code § 74-101(13). Furthermore, the statutory definition of “public record” is expressly “not limited to” that broad language. Id. Thus, other records may qualify even if they fall outside of that definition. A “state agency” includes “every state officer, department, division, bureau, commission and board or any committee of a state agency including those in the legislative or judicial branch, except the state militia and the Idaho state historical society library and archives.” Idaho Code § 74-101(15). A “local agency” includes “a county, city, school district, municipal corporation, district, public health district, political subdivision, or any agency thereof, or any committee of a local agency, or any combination thereof.” Idaho Code § 74-101(8).
The Act applies to any public body. See 5 ILCS 140/2; 5 ILCS 140/1.2. “Public body” is defined broadly to include any legislative, executive, administrative or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof, and a School Finance Authority created under Article 1E of the School Code. 5 ILCS 140/2(a). No particular agency is specifically excluded in entirety from provisions of the Act, but the Act contains numerous exemptions, the nature of which depends on the agency in question and the records sought. The Act, however, does specifically exclude child death review teams or the Illinois Child Death Review Teams Executive Council established under the Child Death Review Team Act. See 5 ILCS 140/2(a).
The Illinois Appellate Court, Fourth District, held in Board of Regents of the Regency University System v. Reynard, 292 Ill. App. 3d 968, 686 N.E.2d 1222, 227 Ill. Dec. 66 (1997), that inclusion within the definition of a "public body" "depends primarily upon organizational structure." Board of Regents, 292 Ill. App. 3d at 977, 686 N.E.2d at 1228, 227 Ill. Dec. at 72. Reynard further held that subsidiaries of public bodies can themselves be public bodies that, in turn, have subsidiaries constituting public bodies covered by the Act. The court noted that the Illinois State University Board of Regents was both an arm of the State of Illinois and the governing body of ISU. The ISU Senate was a subsidiary of the board, and a subsidiary public body is itself a public body under the Act. Board of Regents, 292 Ill. App. 3d at 978, 686 N.E.2d at 1229, 227 Ill. Dec. at 73. Consequently, a subsidiary of the ISU Senate, the Athletic Council of Illinois State University, was a public body that was required to comply with the Act. Id.; see also Duncan Publ'g Inc. v. City of Chicago, 304 Ill. App. 3d 778, 709 N.E.2d 1281, 237 Ill. Dec. 568 (1st Dist. 1999) (holding that individual departments of city were subsidiary public bodies and, thus, public bodies that were each individually subject to the Act).
Every public agency is subject to the act. The term "public agency" is broadly defined to include governmental agencies and private agencies that receive significant funding from the government:
(1) "Public agency" means:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection.
Ky. Rev. Stat. 61.870(1).
The Act contains a list of entities required to conduct public proceedings, but does not list those entities that are subject to the public records requirements under the Act. Compare 1 M.R.S.A. §§ 402(2) (public proceedings) and 402(3) (public records); see also Moore v. Abbott, 2008 ME 100, ¶ 28, n.2, 952 A.2d 980 (Levy, J., dissenting). In general, records are public so long as they "have been received or prepared for use in connection with the transaction of public or governmental business or that contain information relating to the transaction of public or governmental business." 1 M.R.S.A. § 402(3). Whether records are public depends on a governmental function test, not the particular office held by the person or group possessing the record. See Moore v. Abbott, 2008 ME 100, ¶ 10, 952 A.2d 980 (“In evaluating whether an entity or individual, individually or collectively, qualifies as ‘an agency or public official’ for purposes of the Freedom of Access Act, we look to ‘the function that the entity performs.’”).
As a general rule, the records of all units or instrumentalities of State government or of a political subdivision of the State concerning the affairs of government and the official acts of public officials and employees are subject to the PIA. See §§ 4-101(i), (j); see also PIA Manual, at 2. ("The PIA covers virtually all public agencies or officials in the State"). At the local level, § 4-101 defines "political subdivision" to include counties, cities, towns, school districts or any special district. Thus, for example, the Memorial Hospital of Cumberland is covered by the PIA as an agent of the City of Cumberland, Maryland. See Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975).
"Public bodies" are the subjects regulated by the FOIA: "A public body shall furnish a requesting person a reasonable opportunity for inspection and examination of its public records, and shall furnish reasonable facilities for making memoranda or abstracts from its public records during the usual business hours." Mich. Comp. Laws Ann. § 15.233(3) (emphasis added). Mich. Comp. Laws Ann. § 15.232 defines various public bodies as follows:
The public records statute Mont. Code Ann. § 2-6-1002(10) and (13) defines a public record as “information” fixed in any medium and retrievable in usable form prepared, owned used or retained by any public agency relating to the transaction of official business.
No agency is specifically exempt from application of the public records provision. However, a number of specific types of records are rendered "confidential" by separate legislative act.
Neb. Rev. Stat. §84-712.01(1) provides that the term "public records" "shall include all records and documents, regardless of physical form, of or belonging to this state, any county, city, village, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing," unless any other statute expressly provides that particular records shall not be made public.
The Statute applies to “governmental records” maintained by “public agencies” and “public bodies” A “public agency'' means ‘any agency, authority, department, or office of the state or of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision.” RSA 91-A:1-a,V. A "public body'' means any of the following: “(a) The general court including executive sessions of committees; and including any advisory committee established by the general court; (b) The executive council and the governor with the executive council; including any advisory committee established by the governor by executive order or by the executive council; (c) Any board or commission of any state agency or authority, including the board of trustees of the university system of New Hampshire and any committee, advisory or otherwise, established by such entities; (d) Any legislative body, governing body, board, commission, committee, agency, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto; (e) Any corporation that has as its sole member the state of New Hampshire, any county, town, municipal corporation, school district, school administrative unit, village district, or other political subdivision, and that is determined by the Internal Revenue Service to be a tax exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code.” RSA 91-A:1-a,VI.
Specific Bodies Subject to the Statute.
See above for list of specific bodies. Further, the Statute covers a nonprofit corporation formed by an association of governmental entities to provide health insurance benefits for public employees. Professional Firefighters of N.H. v. Healthtrust Inc., 151 N.H. 501 (2004); Prof’l Firefighters of N.H. v. Local Gov’t Center, 159 N.H. 699 (2010).
Specific Bodies Not Subject to the Statute. The following are not subject to the statute:
The Governor. Only the Governor acting together with the Executive Council is subject to the Statute. RSA 91-A:1-a,VI(b). Records may be requested from the Governor based on Part I, Article 8 of the New Hampshire Constitution.
Department of Employment Security: RSA 91-A:6 specifically excludes from disclosure records maintained by the department under RSA 282-A:117-23.
Courts: The Statute nowhere defines courts as public bodies, nor imposes upon courts any requirements of access or disclosure. Access to court records is provided by Part I, Articles 8 and 22 of the New Hampshire Constitution as interpreted by judicial decisions. The Associated Press v. State, 888 A.2d 1236 (2005), and cases cited.
The records of all “public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds” are covered by open records law. N.D. Const., Art. XI, Sec. 6.
Under ORS 192.314 (formerly 192.420), the public records of every “public body” in the state are subject to inspection. ORS 192.311(4) (formerly ORS 192.410) defines “public body” to include “every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council or agency thereof, and any other public agency of the state.” ORS 192.311(6) (formerly 192.410(5)) defines “state agency” to mean “any state officer, department, board, commission or court created by the Constitution or statutes of this state,” except the Legislative Assembly, which is exempt under the state Constitution. “Public corporations,” such as the state bar organization, the state health and sciences university, and a state accident insurance company, are subject to the public records laws. The records of private non-profit corporations and cooperatives are not subject to disclosure, however, even though those organizations may receive public funds and/or perform governmental functions.
The state Supreme Court has held that if an entity is the “functional equivalent” of a public body, the Public Records Law applies to it, listing a variety of factors to be considered. Marks v. McKenzie High School Fact-Finding Team, 319 Or. 451, 878 P.2d 417 (1994). Additionally, as noted in the Attorney General’s Manual, there are many public records in the custody of government agencies which, by special statutory exemption, are not subject to the Records Law.
The APRA is broad in application. Records of agencies or public bodies are subject to the APRA. An “agency” or “public body” shall mean any: “executive, legislative, judicial, regulatory, or administrative body of the state, or any political subdivision thereof; including, but not limited to, any department, division, agency, commission, board, office, bureau, authority, any school, fire, or water district, or other agency of Rhode Island state or local government which exercises governmental functions, any [public authority], or any other public or private agency, person partnership, corporation, or business entity acting on behalf of and/or in place of any public agency.” R.I. Gen. Laws § 38-2-2(1) (2012).
Executive branch records are available for inspection and copying subject to exemptions applicable to all public records.
Records of executives are available if the records come within the definition of public records contained in S.C. Code Ann. § 30-4-20(c). In 2015, the state passed a law funding law enforcement agencies’ use of body-worn cameras. The law specifically provides that data recorded by those cameras “is not a public record subject to disclosure under the Freedom of Information Act.” S.C. Code Ann. § 23-1-240. In 2017, the S.C. Supreme Court ruled that autopsy reports, as held by county coroners or agent medical examiners, were medical records and thus, exempt from disclosure under state law. Perry v. Bullock, 409 S.C. 137, 761 S.E.2d 251 (S.C., 2014)
Availability is determined by the definition of public record and the exemptions to mandatory disclosure, and not by specific function.
Virtually all local and state government bodies and many quasi-governmental bodies are subject to the Act. Section 552.002 makes public “information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:
(1) by a governmental body; or
(2) for a governmental body and the governmental body owns the information or has a right of access to it.”
The Act’s definition of “governmental body” is quite broad. Section 552.003(l)(A) provides that the term means:
“(i) a board, commission, department, committee, institution, agency, or office that is within or is created by the executive or legislative branch of state government and that is directed by one or more elected or appointed members;
(ii) a county commissioners court in the state;
(iii) a municipal governing body in the state;
(iv) a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality;
(v) a school district board of trustees;
(vi) a county board of school trustees;
(vii) a county board of education;
(viii) the governing board of a special district;
(ix) the governing body of a nonprofit corporation organized under Chapter 67, Water Code, that provides a water supply or wastewater service, or both, and is exempt from ad valorem taxation under section 11.30, Tax Code;
(x) a local workforce development board created under Section 2308.253;
(xi) a nonprofit corporation that is eligible to receive funds under the federal community services block grant program and that is authorized by this state to serve a geographic area of the state; and
(xii) the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds.”
Section 552.003(l)(B) explicitly excludes the judiciary from the definition of “governmental body.” A deliberative body that has rulemaking or quasi-judicial power is a “governmental body” and is subject to the Act. Tex. Gov’t Code § 552.003(l)(A)(iv). Quasi-judicial power has been defined as: (1) the power to exercise judgment and discretion; (2) the power to hear and determine or to ascertain facts and decide; (3) the power to make binding orders and judgments; (4) the power to affect the personal or property rights of private persons; (5) the power to examine witnesses, to compel the attendance of witnesses, and to hear the litigation of issues on a hearing; and (6) the power to enforce decisions or impose penalties. Blankenship v. Brazos Higher Educ. Auth., 975 S.W.2d 353, 360 (Tex. App.—Waco 1998, pet. denied) (citing City of Austin v. Evans, 794 S.W.2d 78, 83-84 (Tex. App.—Austin 1990, no writ)). An entity possessing none of these characteristics is not a quasi-judicial entity for purposes of establishing that it is a government body. Id.; San Antonio Building & Const. Trades Council v. City of San Antonio, 224 S.W.3d 738, 749 (Tex. App.—San Antonio 2007, pet. denied) (revenue bonds to be sold to private investors were not “public funds” where no funds of the State of Texas or the City would be used to secure and pay the bonds).
Section 51.212 of the Texas Education Code expressly provides that “[a] campus police department of a private institution of higher education is a law enforcement agency and a governmental body for purposes of [the Act],” but “only with respect to information relating solely to law enforcement activities.” (emphasis added).
The Vermont Public Records Act applies to all branches, departments, agencies and subdivisions of the state; since there is no “home rule” authority in Vermont, it also applies to all county, municipal and town governments and all of their boards and commissions. 1 V.S.A. § 317(a). School districts are also included, as are regional planning commissions and regional waste disposal, sewer and water authorities.
The Act applies to “public records” in the custody of “public bodies,” which are broadly defined to mean “any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.” It further includes “any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body.” Notably, the function of the entity and not its membership is the critical criterion, and a committee, subcommittee or entity is not excluded from coverage because it has private sector or citizen members. Constitutional officers and private police departments as defined in Virginia Code § 9.1-101 are within the definition of “public body” for purposes of access to public records and have the same obligations to disclose public records as other custodians of public records. Corporations organized by the Virginia Retirement System are "public bodies" for the purposes of this chapter, as is the Virginia Birth-Related Neurological Injury Compensation Program. Va. Code Ann. § 2.2-3701.
A list of public bodies categorically excluded from the operation of the Act is set forth in Va. Code Ann. § 2.2-3703. The discussion in this Part I.B. does not identify excluded records, only entities to which the Act does not apply.
The Freedom of Information Act applies to every branch of government, and no agency is entirely exempt from its provisions. The Act applies to every "public body," and that term is broadly defined:
“Public body” means every state officer, agency, department, including the executive, legislative and judicial departments, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council or agency thereof; and any other body which is created by state or local authority or which is primarily funded by the state or local authority.
W. Va. Code § 29B-1-2(3).